OPM Leave Administration

Recently on this blog

Recently on other blogs

In a decision that will undoubtedly be welcomed by employers, the court in Tome v. Harley Davidson Motor Co., No. 1:CV-06-2155, 2007 U.S. Dist. LEXIS 78789 (M.D.Pa. Oct. 24, 2007) found that Harley Davidson did not violate the FMLA by rejecting as inadequate a medical certification identifying the frequency of episodes of incapacity as "completely unpredictable."

In so finding, the court concluded that the requirement in 29 CFR 825.305(d) that an employer must notify an employee when it determines that a medical certification is incomplete also applies where the certification is, as here, complete but inadequate. The court noted that, in accordance with the requirements of the FMLA, Harley Davidson properly informed the employee that "completely unpredictable" was not acceptable, and that it gave the employee a reasonable period of time (a month) to fix the problem. When the employee did not fix the problem, Harley Davidson had the right to deny the employee's request for FMLA leave.

Comment: A growing number of courts have rejected so-called "blank check" medical certifications that fail to provide meaningful information regarding the estimated frequency and duration of FMLA absences

In Brown v. Eastern Maine Med. Center, No. 06-60-P-H, 2007 U.S. Dist. LEXIS 76967 (Me Oct. 15, 2007), the court found that the time (a few minutes to a half hour) an employee was chronically late for work was not protected "intermittent leave" under the FMLA.

Brown was employed as a nurse technician by the Medical Center from June 2002 until her termination on November 3, 2005, for chronic lateness. Brown worked three days a week on a shift that began at 6:30 a.m. The Medical Center repeatedly informed Brown that she must arrive to work on time or she would be considered "tardy," which could lead to discipline. Notwithstanding these warnings, Brown was persistently late throughout her employment, usually by only a few minutes but occasionally up to a half hour. Brown never asked permission to be late to work. Brown did advise the Medical Center that she believed her tardiness was the result of being sick with lupus and because she was depressed. Brown was twice suspended tor three days for chronic lateness and absences(45 late arrivals/absences & 52 absences/late arrivals). Brown was never late to attend medical treatment.

Brown suffered from depression and fatigue throughout her employment. She consulted with a number of doctors in search of a diagnosis and treatment, unfortunately without success. Brown advised the Medical Center that she believed her tardiness was due to depression-related illness. Prior to her termination, the Medical Center offered Brown FMLA leave. Brown rejected the offer because she could not afford to take unpaid leave. The Medical Center terminated Brown effective November 3, 2005, for violation of its attendance policy during August, September, and October 2005. Brown sued alleging that her termination violated the FMLA.

The court initially found that Brown did not suffer from a chronic serious health condition that rendered her unable to perform the functions of her position. Brown, the court observed "could perform the functions of her position" when she was at work; she simply could not get to work on time. The court continued:

But to treat chronic lateness, even if caused by a medical condition, as an incapacity, or inability to perform, that requires intermittent "leave" for the brief duration of the lateness, distorts the English language and trivializes the purpose of the Act.

The court distinguished Brown from the example given in 29 CFR 825.203(c)(1) that intermittent leave was available to a pregnant employee suffering from periods of severe morning sickness. Unlike other cases where diabetic employees needed unscheduled breaks of short duration in order to eat to correct low blood sugar, Brown, the court observed, did not require leave for the duration of an attack of some sort (such as morning sickness or low blood sugar), ending when it was over or treated. Rather, what Brown needed, the Court continued,

was "immunity for her perennial lateness of a few minutes caused by a medical condition that made her resist getting out of bed to go to work. Lateness is not leave."

The court went on to find that Brown had not demonstrated a medical need for her lateness. Rather,

Brown has demonstrated a medical cause for her chronic lateness (impossible for her to be on time) and a desire for FMLA immunity, but I conclude that she has not shown a medical need to take leave in those increments.

The court explained that that 825.203(c)(2) permits intermittent leave for "absences" in cases of incapacity or inability to perform even if the employee does not receive treatment. However, the court determined that the regulation did not apply as it appears in a subsection that allows intermittent leave for treatment or recovery, neither of which are relevant to Brown's chronic lateness.

The court also found that classifying chronic tardiness as intermittent leave would "preclude useful invocation of the features in the FMLA regulatory framework that protect against employee abuse of FMLA leave and minimize disruptions to the employer." As examples, the court noted that allowing intermittent leave for chronic lateness would render ineffectual the employee's obligation to schedule their leave to avoid disruptions to the employer's operations and the employer's ability to find replacements.

Comment: The decision, in my opinion, is problematic. The decision rests on the dubious proposition that 29 CFR 825.203(c) does not cover intermittent absences for incapacity in the absence of treatment or recovery. The regulation reads:

Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a serious health condition even if he or she does not receive treatment by a health care provider.

The court in Brown strangely interprets the above language as permitting intermittent leave only for treatment or recovery. Such an interpretation runs counter to the intent of the DOL. In comments accompanying the final FMLA regulations, the DOL rejected the suggestion that intermittent leave should be limited "solely to those times which are scheduled for treatment, recovery from treatment or recovery from illness." 60 Fed. Reg. 2180, 2202 (Friday, Jan. 6, 1995). The DOL modified the regulations to allow intermittent leave to cover treatment and recovery. Additional, the DOL went on to observe:

The employee will also be entitled to take leave intermittently or on a reduced leave schedule for periods of disability to due to a chronic serious health condition..."

Moreover, it is clear that at all relevant times Brown was receiving medical treatment for her chronic conditions of depression, fatigue, and lupus.

The court's view is contradictory. The court recognized that an employee could take unscheduled intermittent FMLA leave for morning sickness. See 29 CFR 825.203(c)(1). Applying the logic of the court, however, if the pregnant employee was absent due to a bout of morning sickness and was not receiving treatment or or was not recovering, the leave would not be covered. The rationale of the court's decision in Brown necessarily renders the plain language of 825.203(c)(1) and 825.203(c)(2) meaningless.

The courts rationale also appears to rest on an employer's ability to establish a razor thin distinction between intermittent absences where there is "medical need" (which are covered) and absences resulting from a "medical cause" but no need (which are not covered). In order for their to be a medical need, the court in Brown apparently requires that the serious health condition be the direct cause of the absence. For example, morning sickness causing illness that prevents the employee from being at work on time. In Brown, the court characterized the employee's depression as causing her to "resist getting out of bed to go to work." I candidly don't get the distinction. To me, there appears little practical difference between an employee who elects not to get out of bed due to morning sickness from an employee who elects not to get out of bed due to depression. Both are caused by an underlying medical condition. As such, in both cases there appears to be a medical need for leave. The Brown court appears to foster a prejudice against absences due to psychiatric illnesses and in favor of physical illnesses. The FMLA makes no such distinction.

Finally, the court's general hostility to unforeseen intermittent FMLA leave is also demonstrated in the other justification for its decision: that coverage of tardiness conflicts with an employee's obligation to schedule leave to avoid workplace disruptions and the ability of an employer to secure replacement workers. Taken to its logical conclusion, the court's position would render all unforeseen intermittent leave outside of the protections of the FMLA. While this might be a welcome outcome for employers burdened with FMLA administration, the position runs counter to the plain language of the Statute and DOL regulations.

Employers should proceed with caution before denying unforeseen, intermittent FMLA leave for tardiness based on Brown.

Tucked into the recently vetoed State Children's Health Insurance Program (SCHIP) reauthorization legislation was an amendment by Democratic presidential contenders Dodd and Clinton that would have expanded the FMLA. The legislation amends the FMLA and the Uniformed Service Employment and Reemployment Rights Act (USERRA) to provide up to 26 weeks of job-protected leave during a 12-month FMLA leave year for a spouse, parent or child to provide care for an injured military service member. A second provision would extend job protections to family members who take up to a year to care for a recovering service member.

President Bush has indicated some willingness to accept compromise SCHIP legislation. No word if that compromise includes stripping the FMLA expansion provisions from the legislation. According to published reports, the Senate vote of 67 to 29 is enough to override the veto, but the House vote of 265-159 would fall short of the required two-thirds to override the President's veto.

According to an article in today's Denver Post, House Speaker Nancy Pelosi said Democrats are about 14 Republican votes shy of being able to override the president's veto. Speaker Pelosi indicated that her efforts to gain sufficient votes to override the President's veto were on-going.

In Novak v. MetroHealth Med. Center, No. 06-3036, 2007 Fed. App. 0398P (6th Cir. Sept. 28, 2007), the Sixth Circuit found that an employee did not have the right to FMLA leave to care for an adult child where the child was not disabled within the meaning of the FMLA. The adult child suffered from a temporary bout of postpartum depression.

The FMLA authorizes leave to care for a child 18 years of age or older only if the child suffers from a serious health condition and is "incapable of self care because of a mental or psychological disability. The FMLA applies defines "disability" by cross reference to regulations implementing the Americans with Disabilities Act (ADA). Under EEOC Interpretative Guidance, temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are generally not disabilities. Relying on the EEOC Interpretative Guidance, the court found that the week or two that the adult child complained they needed help due to depression failed to establish that she had a disability.

In so holding, the court declined to express an opinion on the decision of the First Circuit in Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). There, the Navarro court declared that the EEOC's interpretive guidance for the ADA did not apply to the FMLA. The Sixth Circuit went on to find that its decision was consistent with Navarro because, based on the facts and not the EEOC interpretive guidance, the condition was of such short duration with no last effects that it did not rise to the level of a disability for purposes of the FMLA.

Comment: The decision technically splits the circuits on the application of the EEOC ADA interpretive guidance excluding short term infirmities from the definition of a "disability" for purposes of FMLA leave to care for an adult child. Novak finds that the interpretative guidance applies. Navarro says that it does not. Both cases, however, apply the factors cited in the EEOC interpretive guidance to determine if the adult child is disabled within the meaning of the FMLA. Given the split in the circuits, this is probably the best course of action to determine if an employee can take FMLA leave to care for an adult child

The FMLA does not prohibit employers from terminating employees who fail to comply with an internal company policy that requires employees to call-in when they will be absent. The fact that the absence may be covered by the FMLA does not abrogate the right of employers to know whether their employees will be coming to work on a particular day.

The FMLA requires employees whose need for leave is not foreseeable to notify their employer that they need leave "as soon as practicable." An employer's policy that requires an employee to call in to work and provide advance notice of the need for leave is consistent with the FMLA where advance notice is reasonable under the circumstances. As such, an employee could terminate an employee for violation of that policy and such termination would not violate the FMLA.

If this Court accepted Plaintiff's position, employers would be severely disadvantaged because they would be prohibited from requiring employees to give advance notice of their absences, even when they are capable of giving advance notice. Without advance notice that an employee will be absent, employers are unable to make arrangements to have somebody else fill in for the absent employee. See Spraggins, 401 F. Supp. 2d at 1239. Because FMLA allows employers to require that their employees call-in their absences, this Court finds that Defendant is entitled to rely on its "no call, no show" policy as a basis for Plaintiff's termination.

Comment: A majority of courts have found that the FMLA does not prohibit an employer from disciplining employees for violation of employer attendance policies, at least where application of those policies do not conflict with the FMLA. For example, an employer could discipline an employee for violation of a "no call, no show" policy that required the employee to give advance notice of the need for leave that was not foreseeable "as soon as practicable," if the employee were able to do so. In that case, the employee would also lose entitlement to FMLA leave because they did not provide notice of the need for leave "as soon as practicable" as required by the FMLA.

Conversely, if the employee was not able to give advance notice of the need for leave under the circumstances, an employer would violate the FMLA were it to discipline the employee for violating the "no call, no show" policy.

The above rule should apply to civil service employees covered by the OPM FMLA regulations.

The updated and revised second edition of the highly acclaimed Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications) has been sent to the publisher and will be available beginning next month.